The recent SARS saga has dampened the souls and minds of thousands of people in Hong Kong and the world. The aftermath includes the ruining of a lot of enterprises and businesses particularly those with service elements. Our profession, especially those in the private sector suffered a sharp drop in service income, say up to 70%, so much so that I have learned a certain number of colleagues had sought early retirement due to recent poor business.
Worse still, our council has learned that panel doctors (three hundred odd of them) of a certain HMO or contract medicine company are unhappy about the delay in reimbursement of doctors¡¦ fees. Unavoidably, such delay in payment deepens the financial burden of the concerned colleagues. It was reported that the delay in payment was over 7 months instead of within 3 months as stated in the contract. We, as a continuum of HKDU Ltd., have helped colleagues in the incident of Asia Medinet a couple of years ago. Now, as a Trade Union, we are empowered by the Trade Union Ordinance to look into the affairs, inter alia, between panel doctors and HMO or contract medicine companies. As members of Trade Union, we are protected from criminal prosecution or civil suit in the following conditions:-
(Ref: Section 43A, Cap. 332 Trade Unions Ordinance)
With all these in mind, still some members are worried whether there is any employment relationship between panel doctors and HMO or contract medicine companies and whether we, Hong Kong Doctors Union, can deal with such disputes. I am now happy to quote a recent High Court decision for members¡¦ reference. Actually, such decision was reported in the news in Hong Kong just 2 months ago. There are certain points in the high court decision that deserve the utmost attention of our members, especially those working with HMOs or contract medicine companies.
The High Court decision (Leung Bing vs Tanfory Company Limited trading as Club Bboss (CFI), 15 May, 2003) (Ref: http://legalref.judiciary.gov.hk/cgi-bin/lrs/menu.pl), reminds the public that the question of whether an employment relationship exists between two persons is a matter to be decided by reference to all the relevant circumstances surrounding that relationship. In an appropriate case, the court may conclude that an employment relationship exists even if this is contrary to an express term in the agreement between the two parties.
The High Court held that there are a number of factors which determine whether a contract is one of service or one for services, including:
Therefore, when HMOs or contract medicine companies draft an agreement which expressly denies the existence of an employment relationship, such an agreement will be effective only if the other surrounding factual circumstances also support the panel doctor being an independent contractor rather than an employee.
Your Council wishes to take this opportunity to remind colleagues not to join HMO with capitation scheme as stipulated in Clauses 14.2.2, 14.2.5 and 14.2.6 in Part III of our Professional Code & Conduct. The HMO referred previously is actually running capitation for panel doctors. Funny enough, the director of that HMO seemed to suddenly realize the inappropriateness of doctors to bear the risk of capitation schemes that such HMO introduced a year ago. Your Council will keep an eye on the development of the above named incident and will keep you informed from time to time. For your information, your Council is collaborating with Preliminary Investigation Committee of the Medical Council of Hong Kong on two HMOs running capitation schemes. Members may refer to October 2002, January 2003 and February 2003 HKDU Bulletins and Pages xx of this Bulletin for further information.
Dr. Yeung Chiu Fat Henry
C262o2003/othercir11